2022 Shari Glazer Et Al V Mohammad Shaikh Et Al MEMORANDUM of LAW I 35

FILED: NEW YORK COUNTY CLERK 05/17/2022 08:09 PM INDEX NO.
650956/2022
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 05/17/2022
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
)
SHARI GLAZER and SWOON CAPITAL, LLC, )
)
Plaintiffs, ) Index No: 650956/2022
)
-against- ) (Schecter, J.)
)
MOHAMMAD SHAIKH, )
)
Defendant, ) Motion Seq. No.: 002
)
MATONEE, INC. )
)
Nominal Defendant. ) ORAL ARGUMENT REQUESTED
)
)
MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANTS’ MOTION TO

DISMISS PLAINTIFFS’ COMPLAINT
QUINN EMANUEL URQUHART &

SULLIVAN LLP
David Grable
865 Figueroa St., 10th Floor
Los Angeles, CA 90017
(213) 443-3190
[email protected]
Michael Liftik
Serafina Concannon
1300 I Street NW Suite 900
Washington, D.C. 20005
(202) 538-8000
[email protected]
[email protected]
Anil Makhijani
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
Attorneys for Defendants
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FILED: NEW YORK COUNTY CLERK 05/17/2022 08:09 PM INDEX NO. 650956/2022
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .............................................................................................. 1

STATEMENT OF FACTS ...................................................................................................... 4
A. Background ...................................................................................................... 4
B. The Written Consulting Agreement ................................................................... 5
C. The Alleged Oral “Agreement” To Create The “Venture”................................... 6
D. The Parties’ Conduct Subsequent To The Alleged Oral Agreement..................... 7
E. Plaintiffs’ Claims .............................................................................................. 9
ARGUMENT .......................................................................................................................... 9
I. THE BREACH OF ORAL CONTRACT CLAIM SHOULD BE DISMISSED
BECAUSE THERE WAS NO MEETING OF THE MINDS ON MATERIAL
TERMS AND BECAUSE ORAL AMENDMENTS TO THE CONSULTING
AGREEMENT ARE PROHIBITED ........................................................................... 12
A. There Was No Agreement To Start Matonee With A $10–$20 Million
Investment With No Dilutive Venture Capital Financing .................................. 12
B. The Complaint Describes Equity Holders Other than Mr. Shaikh And
Glazer But Nowhere Describes How They Impact The Alleged 50-50
Equity Split..................................................................................................... 14
C. Glazer Pleads The Parties Would Share In Losses Only In Conclusory
Fashion, And Her Pleading Otherwise Shows No Meeting Of The Minds
On The Issue................................................................................................... 16
D. Glazer Alleges The “Agreement” Grew Out Of An Oral Amendment To
The Consulting Agreement, But The Consulting Agreement Cannot Be
Amended Orally.............................................................................................. 17
II. GLAZER’S BREACH OF FIDUCIARY DUTY CLAIM (COUNT II) IS
DUPLICATIVE OF HER BREACH OF CONTRACT CLAIM................................... 18
III. GLAZER’S FRAUD CLAIM (COUNT III) IS DUPLICATIVE OF HER
BREACH OF CONTRACT CLAIM........................................................................... 20
IV. GLAZER’S PROMISSORY ESTOPPEL CLAIM (COUNT IV) FAILS
BECAUSE THERE WAS NO CLEAR AND UNAMBIGUOUS PROMISE ON
WHICH SHE COULD REASONABLY RELY, AND IT IS DUPLICATIVE OF
HER BREACH OF CONTRACT CLAIM .................................................................. 22
V. GLAZER’S UNJUST ENRICHMENT CLAIM (COUNT V) SHOULD BE
DISMISSED BECAUSE THERE WAS NO ORAL AGREEMENT, AND TO
THE EXTENT IT SEEKS FULL CONTRACT DAMAGES ....................................... 24
ii
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VI. THE CONSULTING AGREEMENT WAS NOT BREACHED (COUNT VII)

BECAUSE IT DID NOT COVER THE BUSINESS ACTIVITIES OF
MATONEE................................................................................................................ 26
A. The Consulting Agreement’s Non-Compete Provision Does Not Extend
To Developing A Layer 1 Blockchain. ............................................................. 26
B. The Consulting Agreement’s Confidentiality Provision Does Not Extend
To The Venture’s Business Plan. ..................................................................... 28
C. Swoon And Mr. Shaikh Abandoned The Consulting Agreement. ...................... 28
VII. THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE .......................... 29
CONCLUSION ..................................................................................................................... 31
iii
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TABLE OF AUTHORITIES
Page(s)
Cases
Aeb & Assocs. Design Grp. v. Tonka Corp.,
853 F. Supp. 724 (S.D.N.Y. 1994)..................................................................................... 28
Antares Real Estate Servs. III, LLC v. 100 WP Pr. - DOF II, LLC,
No. 652829/2013, 2014 WL 2042300 (Sup. Ct. N.Y. Cnty. May 16, 2014) ......................... 22
Argent Acquisitions, LLC v. First Church of Religious Sci.,
118 A.D.3d 441 (1st Dep’t 2014) ...................................................................................... 15
ASV Techs., Inc. v. Sterling Nat’l Bank,
No. 100944/2019, 2020 WL 3839744 (Sup. Ct. N.Y. Cnty. July 7, 2020) ........................... 10
Basu v. Alphabet Mgmt. LLC,
No. 651340/10, 2014 WL 3373441 (Sup. Ct. N.Y. Cnty. July 9, 2014) ............................... 24
Benham v. eCommission Sols., LLC,
118 A.D.3d 605 (1st Dep’t 2014) ...................................................................................... 15
Bondoc v. Nathan,
No. 152178/2015, 2017 WL 119750 (Sup. Ct. N.Y. Cnty. Jan. 12, 2017)............................ 23
Brands v. Urban,
182 A.D.2d 287 (2d Dep’t 1992) ....................................................................................... 11
Brown & Brown, Inc. v. Johnson,
25 N.Y.3d 364 (2015)....................................................................................................... 26
C3 Media & Mktg. Grp., LLC v. FirstGate Internet, Inc.,
419 F. Supp. 2d 419 (S.D.N.Y. 2005)................................................................................ 28
Caniglia v. Chicago Tribune-New York News Syndicate,
204 A.D.2d 233 (1st Dep’t 1994) ................................................................................ 10, 21
Carroll ex rel Pfizer, Inc. v. McKinnell,
No. 601879/06, 2008 WL 731834 (N.Y. Cnty. Sup. Ct. Mar. 17, 2008) .............................. 29
Collins Tuttle & Co. v. Leucadia, Inc.,
153 A.D.2d 526 (1st Dep’t 1989) ...................................................................................... 25
Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137 (2017)................................................................................................... 9, 10
Cronos Grp. Ltd. v. XComIP, LLC,
156 A.D.3d 54 (1st Dep’t 2017) ........................................................................................ 21
Davis v. Cornerstone Tel. Co., LLC,
887 N.Y.S.2d 477 (Sup. Ct. Albany Cnty. 2009) ................................................................ 25
DeCapua v. Dine-A-Mate, Inc.,
292 A.D.2d 489 (2d Dep’t 2002) ....................................................................................... 26
iv
4 of 40
EMF Gen. Contracting Corp. v. Bisbee,

6 A.D.3d 45 (1st Dep’t 2004) ............................................................................................ 29
Fallon v. McKeon,
230 A.D.2d 629 (1st Dep’t 1996) ...................................................................................... 25
First Keystone Consultants, Inc. v. DDR Constr. Servs.,
74 A.D.3d 1135 (2d Dep’t 2010) ....................................................................................... 20
Foster v. Kovner,
No. 601349/06, 2012 WL 251568 (Sup. Ct. N.Y. Cnty. Jan. 18, 2012) ......................... 14, 15
FoxStone Grp., LLC v. Calvary Pentecostal Church, Inc.,
173 A.D.3d 978, 981 (2d Dep’t 2019) ............................................................................... 24
Ganieva v. Ivywise, LLC,
No. 651071/2019, 2021 WL 1391271 (Sup. Ct. N.Y. Cnty. Apr. 13, 2021) ......................... 18
Gessin Elec. Contractors, Inc. v. 95 Wall Assocs., LLC,
74 A.D.3d 516 (1st Dep’t 2010) ........................................................................................ 11
Hecht v. Andover Assocs. Mgmt. Corp.,
114 A.D.3d 638 (2d Dep’t 2014) ....................................................................................... 25
Hubbell v. Pac. Mut. Ins. Co.,
100 N.Y. 41 (1885)........................................................................................................... 29
Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher,
52 N.Y.2d 105 (1981)................................................................................................. 11, 12
Karipaparambil v. Polus,
195 A.D.3d 515 (1st Dep’t 2021) ...................................................................................... 14
Langer v. Dadabhoy,
44 A.D.3d 425 (1st Dep’t 2007) .................................................................................. 11, 16
McGowan v. Clarion Partners, LLC,
No. 650710/2015, 2019 WL 2745056 (Sup. Ct. N.Y. Cnty. July 1, 2019) ........................... 15
Mandarin Trading Ltd. v. Wildenstein,
65 A.D.3d 448 (1st Dep’t 2009) ........................................................................................ 24
MatlinPatterson ATA Holdings LLC v. Fed. Express Corp.,
87 A.D.3d 836 (1st Dep’t 2011) ........................................................................................ 23
Melrose Credit Union v. Ulysse,
109 N.Y.S.3d 838 (Sup. Ct. Queens Cnty. 2018)................................................................ 22
Mem’l Drive Consultants, Inc. v. ONY, Inc.,
29 F. App’x 56 (2d Cir. 2002) ........................................................................................... 25
Morgenthow & Latham v. Bank of N.Y. Co.,
305 A.D.2d 74 (1st Dep’t 2003) ........................................................................................ 10
N.Y. Fruit Auction Corp. v. New York,
81 A.D.2d 159 (1st Dep’t 1981) ........................................................................................ 18
5 of 40
NYAHSA Servs., Inc. v. People Care Inc.,

141 A.D.3d 785 (2d Dep’t 2016) ....................................................................................... 19
Papa’s-June Music, Inc. v. McLean,
921 F. Supp. 1154 (S.D.N.Y. 1996)................................................................................... 21
Plaintiffs’ State & Sec. Law Settlement Class Counsel v. Bank of N.Y. Mellon ,
985 N.Y.S.2d 398 (Sup. Ct. N.Y. Cnty. 2014).................................................................... 18
Prince v. O’Brien,
256 A.D.2d 208 (1st Dep’t 1998) ...................................................................................... 16
Ripka v. Stenzler,
No. 154593/2019, 2019 WL 6916088 (Sup. Ct. N.Y. Cnty. Dec. 19, 2020)..............11, 18, 22
Rivera v. Cumulus Media, Inc.,
No. 654121/2015, 2016 WL 2647671 (Sup. Ct. N.Y. Cnty. May 9, 2016)........................... 23
Rose v. Spa Realty Assocs.,
42 N.Y.2d 338 (1977)....................................................................................................... 18
RVW Prods. Corp. v. Levin,
No. 655390/2018, 2021 WL 1298096 (Sup. Ct. N.Y. Cnty. Apr. 7, 2021) ................11, 13, 15
Schutty v. Speiser Krause P.C.,
86 A.D.3d 484 (1st Dep’t 2011) ........................................................................................ 10
Singh v. PGA Tour, Inc.,
No. 651659/2013, 2014 WL 641311 (Sup. Ct. N.Y. Cnty. Feb. 13, 2014) .......................... 20
Slabakis v. Schik,
No. 651986/2015, 2016 WL 4410886 (Sup. Ct. N.Y. Cnty. Aug. 19, 2016) ........................ 17
Smith v. Chase Manhattan Bank,
293 A.D.2d 598 (2d Dep’t 2002) ....................................................................................... 24
Stratigos v. Brio Bar Corp.,
No. 654963/2018, 2020 WL 2557884 (Sup. Ct. N.Y. Cnty. Apr. 2, 2020) ........................... 10
Taxi Medallion Loan Tr. III v. Benson Hacking Corp.,
655049/2018, 2019 WL 2869382 (Sup. Ct. N.Y. Cnty July 3, 2019)................................... 17
Velez v. Mitchell,
No. 654372/2020, 2021 WL 1089935 (Sup. Ct. N.Y. Cnty. Mar. 22, 2021)......................... 16
Victory State Bank v. EMBA Hylan, LLC,
169 A.D.3d 963 (2d Dep’t 2019) ....................................................................................... 10
Ward v. Wittich,
No. 151689/2020, 2021 WL 1235084 (Sup. Ct. Richmond Cnty. Apr. 8, 2021) .................. 10
Xhepexhiu v. Mitaj,
No. 655159/2019, 2020 WL 5809086 (Sup. Ct. N.Y. Cnty. Sep. 25, 2020) ......................... 14
Statutory Authorities
N.Y. Civ. Prac. L. & R. 3016 ................................................................................................. 20
vi
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N.Y. Civ. Prac. L. & R. 3016(b) ............................................................................................. 18

N.Y. Civ. Prac. L. & R. 3211(a)(1)..................................................................................1, 2, 10
N.Y. Civ. Prac. L. & R. 3211(a)(7)....................................................................................... 1, 9
Rules and Regulations
22 NYCRR 202.70(g) ............................................................................................................ 32
Additional Authorities
Black’s Law Dictionary (11th ed. 2019) ................................................................................ 26
vii
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Defendant Mohammed Shaikh (“Shaikh”) and Nominal Defendant Matonee, Inc.
(“Matonee,” and together with Shaikh, the “Defendants”) respectfully submit this memorandum
of law in support of their motion, pursuant to New York Civil Practice Law and Rules 3211(a)(1)
and 3211(a)(7), to dismiss the Complaint filed by Shari Glazer (“Glazer”) and Swoon Capital,
LLC (“Swoon,” and together with Glazer, “Plaintiffs”) in its entirety and with prejudice.1
PRELIMINARY STATEMENT
The Complaint in this case is a work of fiction. Glazer was generously offered an
opportunity to invest in an exciting new blockchain company (Matonee), alongside other early
investors, including other “partners” and venture capital firms. But after receiving a term sheet
for the investment, Glazer realized that Matonee was being valued by prospective investors at $1
billion, meaning that her $10 million investment would entitle her to 1% of the company.
Rather than investing at that $1 billion valuation like every other investor, Glazer fabricated
a story that she was a “50/50 co-founder” of Matonee, and filed this lawsuit to make a grab at a
much larger slice of the company. Glazer has no meaningful prior experience or expertise in the
work Matonee does, and has made no novel contributions to the company. She seeks to elbow out
Mr. Shaikh’s true co-founder, an expert who has spent years helping to lead the development of
the technology underlying Matonee.
The Complaint is centered on a purported oral agreement Glazer claims she struck with
Mr. Shaikh, containing the following material economic terms: (1) Glazer would fund a blockchain
company with a $10 million capital contribution from her and secure an additional $10 million
investment from another entity; (2) the new company would not seek venture capital funding
1Citations to Ex. _ are to exhibits appended to the Affirmation of Anil Makhijani filed concurrently
with this memorandum of law. Citations to Compl. ¶ _ are to the Complaint (NYSCEF Doc. No.
1).
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because it would dilute Glazer’s ownership share; and (3) Glazer and Mr. Shaikh would be 50-50
partners (sharing in profits and losses equally) and would form a corporation in which Glazer
would be granted “50% of the founder’s shares.” Compl. ¶¶ 84-86.
There are reams of evidence that, if necessary, can be presented to prove these and other
Glazer assertions to be flat out lies.2 However, for the purposes of this motion, the Court should
dismiss based on the allegations in the Complaint and one piece of documentary evidence that
Glazer failed to reference in the Complaint but can be considered by the Court under CPLR
3211(a)(1). These materials show that the central claim in the case—that there was an oral
agreement—is fatally flawed because there was no meeting of the minds on its material terms.
First, the Court can and should consider a November 7, 2021 WhatsApp exchange between
Glazer and Mr. Shaikh, where Glazer asks if her $10 million investment would be enough to fund
Matonee. Importantly, this exchange occurred three days after the Complaint claims that
Mr. Shaikh and Glazer “affirmed their commitment to each other” under the Agreement (on
November 4) and on the same day the Complaint alleges that “Ms. Glazer reaffirmed her
commitment to invest $10 million.” Compl. ¶¶ 50, 58.
Rather than telling Glazer that $10 million would be enough, and would entitle her to “50%
of the founder’s shares” in the corporation (Compl. ¶¶ 84–86), Mr. Shaikh responded to Glazer’s
WhatsApp message in no uncertain terms: “That won’t be enough.” (emphasis added). Glazer
then asked, “20? . . . Or you think we need the full 75.” Mr. Shaikh again responded that Matonee
2 Glazer’s lies cover the landscape of her complaint, and relate to matters both large and small.
For example, the Complaint pleads that “Ms. Glazer is an investor with significant knowledge of
the blockchain and cryptocurrency industry.” Compl. ¶ 1. Glazer conveniently omits directly
contrary evidence, for example an email she sent Mr. Shaikh stating that “The crypto world is
WAYYY too confusing. OMG wow. I spent so many hours last night. I understand my coinbase
account, but is a nightmare. Every time I’ve ever tried to use it I quit because I can’t
get it to work … SOOO frustrated!”
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would need “$75-100m” to launch, and went on to identify over two dozen “[i]nvestors in the hold
co for $75-100m raise” including several of the biggest blockchain venture capital funds, among
them a16z, Kleiner Perkins, and Paradigm.
This document irrefutably shows there was no agreement that an investment in the $10–
$20 million range would be sufficient funding to launch the company, or that the parties would
avoid venture capital investors to prevent dilution of Glazer’s investment. Glazer did not respond
to Mr. Shaikh’s November 7 message by saying his statements were contrary to the purported oral
Agreement. She instead wrote “Yay! I’m so excited about this I can’t tell you.”3
Second, the Court can and should consider various allegations in the Complaint which
make clear that others would be receiving equity in Matonee, fully undermining any purported oral
agreement on a “50/50” split between Mr. Shaikh and Glazer. For example, Glazer pleads that she
“secured an additional $10 million financing commitment from a global media and entertainment
conglomerate.” Yet despite being very clear that this “conglomerate” would be providing
significant investment to the alleged Venture, Glazer nowhere describes the amount and type of
equity it would be receiving and how this would dilute Glazer and Mr. Shaikh’s alleged “50 -50”
split.
In short, there was no meeting of the minds on the purported oral “Agreement” Glazer has
pled, warranting dismissal of Count I (breach of oral agreement), Count IV (promissory estoppel),
3 The document is also one of many that show Glazer’s fraud claim to be a fabrication. Glazer’s
Complaint claims that Mr. Shaikh had “secret discussions” with a16z in early November 2021
“unbeknownst to Ms. Glazer” as part of “a fraudulent scheme to deprive [her] of her rightful
ownership in the Venture.” Compl. ¶¶ 53–54. Yet in the November 7 WhatsApp message, Mr.
Shaikh tells Glazer that the several venture capital firms he lists (“strategic VCs: a16z, blocktower,
Kliener, Pantera, multicoin, paradigm”) “are all names that I have spoken with that would be
very interested” in investing in Mr. Shaikh’s new company. Ex. B at 1 (emphasis added).
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Count V (unjust enrichment), and Count VI (declaratory judgment for the existence of an oral
agreement).
Counts I, IV, V, and VI also all fail because (a) the Complaint claims that the alleged
“Agreement” grew out of an oral amendment to a written Consulting Agreement between Glazer
and Mr. Shaikh; but (b) that Consulting Agreement, by its own terms, can only be amended by a
writing signed by both parties. There thus was no valid oral “Agreement” (defeating Counts I and
VI). Glazer’s promissory estoppel (Count IV) and unjust enrichment (Count V) claims should also
be dismissed because Glazer could not have reasonably relied on an alleged oral promise to amend
the Consulting Agreement.
The Complaint’s other counts should also be dismissed. Under well-established New York
law, Counts II and III for breach of fiduciary duty and fraud are duplicative of Glazer’s contract
claim, warranting dismissal. Plaintiff Swoon’s claim pursuant to the Consulting Agreement
(Count VII) should be dismissed because the narrow terms of the non-compete agreement do not
reach the activities of Matonee, the alleged confidential information shared by Glazer is not
covered by the Consulting Agreement, and Glazer alleges that the Consulting Agreement was
abandoned. Accordingly, the Complaint should be dismissed in its entirety.
STATEMENT OF FACTS4
A. Background
1. Glazer is part of a family that owns a “professional football franchise and a Premier
League soccer franchise.” Compl. ¶ 1. In May 2021, Glazer established a business venture through
4 Although the Complaint’s allegations contain many false statements, for purposes of this
recitation, the allegations are presumed true.
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Plaintiff Swoon. Compl. ¶ 2. Swoon is in the “business of procuring digital assets for their
incorporation into sports franchises globally.” Ex. A at 4.
2. Glazer and Mr. Shaikh first met in the summer of 2021, through a “lawyer who is
a mutual acquaintance.” Compl. ¶¶ 3, 27.
B. The Written Consulting Agreement
3. In early August of 2021, shortly after they met, Glazer and Mr. Shaikh entered into
a consulting agreement (the “Consulting Agreement”), pursuant to which Mr. Shaikh agreed to act
as an independent consultant, and to “recommen[d] no less than three digital assets for
incorporation into a sporting franchise.” Compl. ¶¶ 2–3, 26, 28; Ex. A at 7. In exchange, Glazer
agreed to pay Mr. Shaikh $35,000. Compl. ¶ 3.
4. Glazer had her lawyers from White & Case prepare a written agreement, which the
Complaint describes as “ironclad,” to memorialize the $35,000 of work that Mr. Shaikh was to do
for her as an independent consultant. Compl. ¶¶ 3, 25–26, 28. Mr. Shaikh signed the Consulting
Agreement on his own behalf, and Glazer signed as the “Founder” of Swoon. Ex. A at 6.
5. The Consulting Agreement contains a narrow non-compete provision, stating that
Mr. Shaikh may not engage in the business of “procuring digital assets for their incorporation into
sports franchises globally.” Ex. A at 4.
6. The Consulting Agreement states that the written agreement, together with any
“Statements of Work” issued thereunder, “represents the entire agreement” and cannot “be
amended except in writing and signed by both Parties.” Ex. A at 5. The Complaint does not allege
that any Statements of Work were issued, or that the Consulting Agreement was ever amended
through a writing signed by both parties.
7. Glazer claims that “Shaikh never performed his duties under the Consulting
Agreement and did not receive payment thereunder.” Compl. ¶ 33.
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C. The Alleged Oral “Agreement” To Create The “Venture”
8. Glazer alleges that on or about August 30, 2021, just over 20 days after the
Consulting Agreement was signed, the parties orally agreed to “[m]odify” and “change” their
“consulting arrangement” such that, “instead of acquiring and repurposing existing blockchains
[for incorporation into a sports franchise], Ms. Glazer would assemble a team of engineers to
develop a new, scalable [Layer 1] blockchain.” Compl. ¶¶ 5, 31, 33. Glazer does not allege that
this “change” or “modif[ication]” to the Consulting Agreement was accomplished through a
writing, let alone a writing signed by both parties.
9. According to Glazer, the alleged oral agreement contains the following material
economic terms: (1) Glazer would “provide $10 million in financing (more if needed)” and Glazer
would “secure an additional $10 million initial investment from within her network”; (2) Glazer
and Mr. Shaikh “would not seek outside venture capital financing” which would dilute Glazer’s
economic interests; and, (3) in turn, Glazer would be a “50-50” partner in the Venture (agreeing
to share equally in profits and losses), entitling her to “50% of the founder’s shares” in Matonee
(the “Agreement”). Compl. ¶¶ 39, 40, 46, 113. The Complaint nowhere describes, inter alia: (a)
what “founder’s shares” are as compared to other types of equity in Matonee , including what
rights, obligations, and vesting schedules they have; (b) the terms and structure of the “additional
$10 million” in financing that Glazer was to secure, including how it would impact (or otherwise
dilute) the alleged 50-50 split between her and Mr. Shaikh; or (c) why “outside venture capital”
financing would have a dilutive effect that the “additional $10 million” in financing Glazer was to
secure would not.
10. Glazer alleges that she and Mr. Shaikh understood the necessity of having a written
agreement setting forth the rights and obligations of the parties, claiming that the two “agreed to
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retain counsel to memorialize their partnership in the Venture in a written partnership agreement
pursuant to the terms of the Agreement.” Compl. ¶ 41. This never happened.
D. The Parties’ Conduct Subsequent To The Alleged Oral Agreement
11. Glazer claims that on November 4, 2021, she and Mr. Shaikh “affirmed their
commitment to each other” under the Agreement. Compl. ¶¶ 50–51.
12. Glazer claims that “[o]n or about November 7, 2021, she and Mr. Shaikh discussed
next steps for their Venture, including Mr. Shaikh’s plan to recruit eight engineers who were part
of the team needed to complete the Venture’s blockchain.” Id. ¶ 58. On that same day, Glazer
claims she “reaffirmed her commitment to invest $10 million in order to, inter alia, [] secure the
engineers for the Venture.” Id.
13. Also on that same day, Glazer and Mr. Shaikh had the following WhatsApp
conversation, which Glazer elected to omit from her Complaint:
[11/7/21, 11:39:12 AM] Shari Glazer: I’m thinking what if we put up 10 just to get the
engineers etc
[11/7/21, 11:39:51 AM] Mo Shaikh: That won’t be enough.
[11/7/21, 11:40:00 AM] Shari Glazer: Just to get them?
[11/7/21, 11:40:21 AM] Shari Glazer: What’s the number to do phase 1
[11/7/21, 11:40:32 AM] Mo Shaikh: The protocol engineers make north of $1m a year now
[11/7/21, 11:40:40 AM] Shari Glazer: To me phase 1 is talent right?
[11/7/21, 11:40:59 AM] Shari Glazer: 20?
[11/7/21, 11:41:55 AM] Shari Glazer: Or you think we need the full 75
[11/7/21, 11:41:59 AM] Shari Glazer: To start?
[11/7/21, 12:53:56 PM] Shari Glazer:
[11/7/21, 12:54:48 PM] Shari Glazer:
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Ex. B at 1.
14. Mr. Shaikh responded with a clear and specific recitation of how much funding
would be needed and what investors he believed would provide the initial funding for the
company—a recitation irrefutably at odds with what Glazer claims were the material terms already
agreed upon.
[11/7/21, 1:49:22 PM] Mo Shaikh: Phase 1: Launch the blockchain
Something we want to do as fast possible
This will require a team of 15-25 people across engineering and G2M.
External advisors/council: legal, marketing, etc.
[11/7/21, 2:21:37 PM] Mo Shaikh: Investors in the hold co for $75-100m raise:
1/ Shari and Friends
2/ strategic VCs: a16z, blocktower, Kliener, Pantera, multicoin, paradigm
3/ strategic infrastructure: Coinbase, FTX, Okex, kraken, binance, mining companies, USV
4/ strategic partner/builders: Fox, NFL, MLB, NBA, Tiffany’s, LVMH, Nike, Adidas,
Netflix, epic games, Roblox, Shopify, Spotify, etc…
These are all names that I have spoken with that would be very interested.
Ex. B at 1 (emphasis added).
15. Glazer did not respond to Mr. Shaikh’s description by saying “that’s not our
agreement” or anything of the sort. Nor did Glazer question Mr. Shaikh listing her as an “investor.”
Instead, she closed out the WhatsApp chat with Mr. Shaikh that day by writing “Yay! I’m so
excited about this I can’t tell you.” Ex. B at 2 (emphasis added).
16. Glazer alleged that she and Mr. Shaikh continued to discuss the launch of the
Venture’s blockchain in November and December 2021, including a discussion as to “which law
firm the Venture should use to reduce the Agreement to writing.” Compl. ¶¶ 69, 71.
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17. On December 8, 2021, Glazer sent an email to Mr. Shaikh (referred to in the
Complaint at ¶ 77), attaching “the standard [simple agreement for future equity] from [her law
firm White & Case],” and telling Mr. Shaikh that the “numbers can get filled in.” Ex. C at 1. The
draft agreement that Glazer sent to Mr. Shaikh nowhere mentioned a 50/50 partnership between
Glazer and Mr. Shaikh, and instead contemplated a simple, passive investment by Glazer.
18. Glazer claims that a little over a week later, on December 16, 2021, Mr. Shaikh
repudiated his alleged oral agreement with her. Compl. ¶ 78.
19. On March 1, 2022, Plaintiffs filed the instant lawsuit against Mr. Shaikh and
Nominal Defendant Matonee. See Compl.
E. Plaintiffs’ Claims
20. In the Complaint, Glazer alleges six causes of action against Mr. Shaikh: (a) breach
of the Agreement; (b) breach of fiduciary duty; (c) fraud; (d) promissory estoppel; (e) unjust
enrichment; and (f) declaratory relief . Swoon alleges one cause of action against Shaikh: breach
of the Consulting Agreement. Plaintiffs seek damages of at least $1 billion in connection with all
of the causes of action other than for declaratory relief, under which Glazer seeks a declaratory
judgment stating that she owns 50% equity in the Venture and in Matonee.
21. The Complaint names Matonee as a nominal defendant, alleging that “its interests
would be affected if Ms. Glazer were to prevail in this litigation.” Compl. ¶ 21. But the Complaint
nowhere states how Matonee’s “interests would be affected.”
ARGUMENT
Under CPLR 3211(a)(7), “[d]ismissal of the complaint is warranted if the plaintiff fails to
assert facts in support of an element of the claim, or if the factual allegations and inferences to be
drawn from them do not allow for an enforceable right of recovery.” Connaughton v. Chipotle
Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017). Although the Court must “accept the facts as
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alleged in the complaint as true, [and] accord plaintiff[] the benefit of every possible favorable
inference, . . . [a]t the same time, . . . allegations consisting of bare legal conclusions . . . are not
entitled to any such consideration.” Id. at 141 (citations omitted). Neither are factual allegations
“that are inherently incredible or flatly contradicted by documentary evidence.” Caniglia v.
Chicago Tribune-New York News Syndicate, 204 A.D.2d 233, 233–34 (1st Dep’t 1994).
Under CPLR 3211(a)(1), “[t]o succeed on a motion to dismiss based upon documentary
evidence . . . the documentary evidence must utterly refute the plaintiff’s factual allegations,
conclusively establishing a defense as a matter of law.” Victory State Bank v. EMBA Hylan, LLC,
169 A.D.3d 963, 965 (2d Dep’t 2019). In other words, although allegations in a complaint are
generally presumed to be true, that is not so “where the legal conclusions and factual allegations
are flatly contradicted by documentary evidence.” Morgenthow & Latham v. Bank of N.Y. Co.,
305 A.D.2d 74 (1st Dep’t 2003). Courts can dismiss claims with prejudice where documentary
evidence provided by the defendant refutes plaintiff’s claims.5
“Correspondence through letters and emails may be properly considered by this court as
documentary evidence under CPLR 3211 (a)(1).” ASV Techs., Inc. v. Sterling Nat'l Bank, No.
100944/2019, 2020 WL 3839744, at *2 (Sup. Ct. N.Y. Cnty. July 7, 2020); see also Schutty v.
Speiser Krause P.C., 86 A.D.3d 484, 485 (1st Dep’t 2011) (considering correspondence between
parties under CPLR 3211(a)(1) on a motion to dismiss to determine whether an oral agreement
was formed between parties).
5 See, e.g., Ward v. Wittich, No. 151689/2020, 2021 WL 1235084, at *3 (Sup. Ct. Richmond
Cnty., Apr. 8, 2021) (dismissing with prejudice breach of contract claim where there was no
meeting of the minds that defendant promised plaintiff interest in a bank account, a nd no
consideration for the promise); Stratigos v. Brio Bar Corp., No. 654963/2018, 2020 WL 2557884,
at *3 (Sup. Ct. N.Y. Cnty. Apr. 2, 2020) (denying leave to replead breach of contract claim where
document showed that plaintiff is not a party to the contract).
.
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Further, in a case involving an oral agreement, where a communication by plaintiff plainly
contradicts a material term of the alleged oral agreement, that communication can be considered
on a motion to dismiss. Ripka v. Stenzler, No. 154593/2019, 2019 WL 6916088, at *4 (Sup. Ct.
N.Y. Cnty. Dec. 19, 2020) (Schecter, J.) (finding documentary evidence did not contradict the
alleged oral agreement but observing that “had one of the emails contained an admission by
plaintiff that he never reached an agreement for a 10% stake, that would be another matter”). In
cases involving alleged oral agreements, this Court may also consider correspondence which
shows that “the parties intended to finalize their agreement in a writing, which never materialized”
or that “negotiations had been ongoing” between parties, but were ultimately discontinued. Langer
v. Dadabhoy, 44 A.D.3d 425, 426 (1st Dep’t 2007); see also RVW Prods. Corp. v. Levin, No.
655390/2018, 2021 WL 1298096, at *3 (Sup. Ct. N.Y. Cnty. Apr. 7, 2021) (dismissing the
complaint because a “text message contradict[ed] any claim of mutual assent sufficiently definite
[enough] to assure that the parties [were] truly in agreement with respect to all material terms”)
(internal citations omitted).
These decisions flow in part from the basic principle that there must be a meeting of the
minds on essential terms for there to be an enforceable agreement. Brands v. Urban, 182 A.D.2d
287 (2d Dep’t 1992) (“It is well established that a contract is unenforceable where there is no
meeting of the minds between the parties thereto regarding a material element thereof.”); Gessin
Elec. Contractors, Inc. v. 95 Wall Assocs., LLC, 74 A.D.3d 516, 518 (1st Dep’t 2010) (“Even if
parties intend to be bound by a contract, it is unenforceable if there is no meeting of the minds,
i.e., if the parties understand the contract’s material terms differently.”); Joseph Martin, Jr.,
Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109 (1981) (“It is rightfully well settled in the
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common law of contracts in this State that a mere agreement to agree, in which a material term is
left for future negotiations, is unenforceable.”). Indeed, in New York:
[B]efore the power of law can be invoked to enforce a promise, it must be sufficiently
certain and specific so that what was promised can be ascertained. Otherwise, a court,
in intervening, would be imposing its own conception of what the parties should or
might have undertaken, rather than confining itself to the implementation of a bargain
to which they have mutually committed themselves. Thus, definiteness as to material
matters is of the very essence in contract law. Impenetrable vagueness and uncertainty
will not do.
Id.
I. THE BREACH OF ORAL CONTRACT CLAIM SHOULD BE DISMISSED

BECAUSE THERE WAS NO MEETING OF THE MINDS ON MATERIAL
TERMS AND BECAUSE ORAL AMENDMENTS TO THE CONSULTING
AGREEMENT ARE PROHIBITED
Glazer claims that her purported Agreement with Mr. Shaikh included the following
material terms:
(1) Glazer would “provide $10 million in financing (more if needed)” and “secure an
additional $10 million initial investment from within her network”;
(2) the parties “would not seek outside venture capital financing during the early stages
of the Venture” because it “would … dilute[] Ms. Glazer’s founder’s equity in the
Venture”; and
(3) Glazer would be entitled to a “50% interest in the Venture [(sharing equally in
profits and losses)] and 50% of the founder’s shares in Matonee.”
Compl. ¶¶ 39–40, 86 (emphasis added). However, the allegations in the Complaint and Glazer’s
own, contemporaneous written communications with Mr. Shaikh show that there was no meeting
of the minds on these essential, material terms.
A. There Was No Agreement To Start Matonee With A $10–$20 Million

Investment With No Dilutive Venture Capital Financing
The above-described WhatsApp communication irrefutably provides that there was no
such meeting of the minds as alleged. On November 7, 2021, Glazer asked Mr. Shaikh: “20
[million]? Or you think we need the full 75 [million] [t]o start [Matonee]?” Mr. Shaikh responded
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that Matonee would need $75 million to $100 million, and listed the specific entities and
individuals he contemplated as investors for that funding (including listing Glazer as an investor,
not founder):
[11/7/21, 2:21:37 PM] Mo Shaikh: Investors in the hold co for $75-100m raise:
1/ Shari and Friends
2/ strategic VCs: a16z, blocktower, Kliener, Pantera, multicoin, paradigm
3/ strategic infrastructure: Coinbase, FTX, Okex, kraken, binance, mining companies,

USV
4/ strategic partner/builders: Fox, NFL, MLB, NBA, Tiffany’s, LVMH, Nike, Adidas,
Netflix, epic games, Roblox, Shopify, Spotify, etc…
These are all names that I have spoken with that would be very interested.
Ex. B at 1 (emphasis added).
Glazer did not respond by saying Mr. Shaikh’s plan was contrary to the alleged oral
Agreement, or to any other purported understanding between the parties. Instead, she wrote: “Yay!
I’m so excited about this I can’t tell you.” Id. (emphasis added).
This exchange irrefutably shows that as of November 7, 2021, just three days after Glazer
and Mr. Shaikh allegedly reaffirmed their agreement and on the same day Glazer allegedly
“reaffirmed her commitment to invest $10 million,” Mr. Shaikh and Glazer (1) had not agreed as
to how much funding was necessary to launch the company ; (2) had not agreed to avoid
investments from venture capital firms, including a16z; and (3) had no mutual understanding that
Glazer’s role was that of a 50/50 partner and founder, not merely an investor. Because this
documentary evidence shows there was no meeting of the minds on material terms, Counts I and
IV should be dismissed with prejudice. See, e.g., RVW Prods., 2021 WL 1298096, at *3
(dismissing claim for oral agreement with prejudice because the text messages between the parties
“contradict[] any claim of mutual assent” regarding the material terms of alleged agreement).
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B. The Complaint Describes Equity Holders Other than Mr. Shaikh And Glazer
But Nowhere Describes How They Impact The Alleged 50-50 Equity Split
While Glazer claims that she and Mr. Shaikh agreed to be “50/50 partners” entitling her to
50% of the founders’ shares in Matonee, she alleges several times in the Complaint that others
(besides she and Mr. Shaikh) would also have a significant interest in Matonee. Glazer does not
explain how this would work.
For example, Glazer alleges that she “secured an additional $10 million financing
commitment from a global media and entertainment conglomerate” (“Fox”), who agreed to
“match” her $10 million investment commitment in Matonee. Compl. ¶¶ 7, 46. She alleges in
conclusory fashion that this “company’s investment would not affect Ms. Glazer’s right to 50% of
the founder’s shares in the corporation.” Compl. ¶ 46. But the investor must be getting some
equity, which begs the questions—what is this media conglomerate getting by way of equity, how
would the investment be structured, and how does it impact/dilute Glazer’s share?
The amount of equity being received by each party is a material term in any oral partnership
agreement. See Karipaparambil v. Polus, 195 A.D.3d 515, 515 (1st Dep’t 2021) (affirming
Schecter, J. trial court decision dismissing breach of fiduciary claim relating to an unenforceable
oral agreement where plaintiff did not “identify the precise amount of equity interest he was
allegedly owed”); Foster v. Kovner, No. 601349/06, 2012 WL 251568, at *7 (Sup. Ct. N.Y. Cnty.
Jan. 18, 2012) (finding no oral agreement where there was no meeting of the minds on the
percentage of equity plaintiff would be entitled to); see also Xhepexhiu v. Mitaj, No. 655159/2019,
2020 WL 5809086, at *1 (Sup. Ct. N.Y. Cnty. Sep. 25, 2020) (“The list of terms which must be
included in a contract” include “all of the material terms which one would reasonably have
expected to be included under the circumstances”).
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The type of equity being given to a party is also a material term. Benham v. eCommission
Sols., LLC, 118 A.D.3d 605, 607 (1st Dep’t 2014) (“The failure of the parties to agree on the
precise form of the equity stake causes plaintiff’s contract claim to fail for lack of definiteness in
the material terms of her equity compensation.”); McGowan v. Clarion Partners, LLC, No.
650710/2015, 2019 WL 2745056, at *7 (Sup. Ct. N.Y. Cnty. July 1, 2019) (“The precise form of
this economic interest is material and would customarily be included in this type of transaction.”).6
The Complaint ambiguously states that Glazer and Mr. Shaikh would receive “founders’
share equity,” (Compl. ¶ 7) without describing in any fashion what rights or obligations “founders’
share[s]” would carry relative to other shares, including the type and form of equity and how it
would vest over time. Nor does the Complaint describe the equity that Fox would receive,
including the amount or structure. At bottom, the Complaint pleads a situation where there was
no legally enforceable meeting of the minds. RVW Prods., 2021 WL 1298096, at *3-*4 (finding
no oral agreement because there was no agreement on key material terms, thereby dismissing
breach of oral agreement claims with prejudice). The fundamental ambiguities created by Glazer’s
own allegations doom any claim for a breach of the purported Agreement, requiring dismissal with
prejudice. See Argent Acquisitions, LLC v. First Church of Religious Sci., 118 A.D.3d 441, 444
6 Even assuming the parties agreed to a specific equity amount and type of equity for Fox and
each of the alleged founders of Matonee (which the Complaint does not allege happened),
ambiguities remain regarding how Fox’s investment would be structured to avoid dilution of
Glazer’s share (where a venture capital investment could not). Such ambiguity prevents the
formation of a binding, oral agreement. Foster, 2012 WL 251568, at *8 (“Even assuming, contrary
to the evidence, that Foster was promised a 10% equity share in CHH, that term, considered in
isolation, is too indefinite to be enforced. The parties considered a variety of vesting, buy -back,
forfeiture and other options relating to the equity interests, and Foster concedes that none of them
were accepted or implemented.”).
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(1st Dep’t 2014) (an agreement is unenforceable where the parties have not decided on all material
terms).7
C. Glazer Pleads The Parties Would Share In Losses Only In Conclusory

Fashion, And Her Pleading Otherwise Shows No Meeting Of The Minds On
The Issue
The Complaint summarily states that Glazer and Mr. Shaikh agreed to share losses incurred
in connection with the Venture. See Compl. ¶ 40 (“Ms. Glazer and Shaikh agreed to be equal
partners in the Venture, sharing the equity on a 50-50 basis and sharing profits and losses equally”);
Compl. ¶ 84 (“Ms. Glazer and Shaikh would be equal, 50/50 partners, sharing equally in the
Venture’s profits and losses”). But a failure to plead any “facts or specific instances” to support
this bare allegation is fatal to Glazer’s claim that Glazer and Mr. Shaikh were partners in the
Venture. See Velez v. Mitchell, No. 654372/2020, 2021 WL 1089935, at *4 (Sup. Ct. N.Y. Cnty.
Mar. 22, 2021) (“The Complaint also alleges that Plaintiff and Defendants ‘shared losses on an
equal basis’ . . . but alleges no facts or specific instances that would support this allegation . . .
[and] the ‘requirement that parties have agreed to share in the profits and losses is an indispensable
element of a contract of partnership or joint venture’”); see also Prince v. O’Brien, 256 A.D.2d
208, 212–13 (1st Dep’t 1998) (“Before defendant became a success, the parties may have casually
discussed splitting their hypothetical profits equally, but there was no evidence that they agreed to
share losses, which is an ‘essential element’ of a partnership.”); Slabakis v Schik, No.
651986/2015, 2016 WL 4410886, at *5 (Sup. Ct. N.Y. Cnty. Aug. 19, 2016) (“Slabakis does not
7Courts have recognized that where parties intended to reduce their alleged agreements to writing,
but failed to do so, this suggests an ongoing negotiation which never materialized into a binding
agreement (i.e., no meeting of the minds on material terms). See, e.g., Langer, 44 A.D.3d at 426
(no meeting of the minds where parties “intended to finalize their agreement in a writing” but
never did). Glazer’s complaint alleges that the parties discussed reducing their alleged oral
agreement to writing several times, but never did. See, e.g., Compl. ¶ 41.
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sufficiently plead that he agreed to share losses in a non -conclusory manner, nor does he allege
what losses or liability he is jointly and severally responsible for.”). Accordingly, Counts I and
IV should be dismissed on this alternative ground.
Even more, Glazer’s conclusory statements regarding sharing of losses can be disregarded
in light of other inconsistent factual allegations, which show no meeting of minds on equal sharing
of losses. As previously noted, Glazer alleges that Fox would invest $10 million in the alleged
Venture, but nowhere explains the structure of Fox’s equity interests and how they would share in
losses with Glazer and Mr. Shaikh. The Complaint also pleads that Glazer paid for the out-of-
pocket expenses from the trip to Los Angeles, inconsistent with an agreement to share losses with
Mr. Shaikh equally. Compl. ¶ 62. In short, there was no meeting of the minds on an equal sharing
of losses.
D. Glazer Alleges The “Agreement” Grew Out Of An Oral Amendment To The

Consulting Agreement, But The Consulting Agreement Cannot Be Amended
Orally
The Complaint alleges that the “Agreement” was an oral amendment to the Consulting
Agreement. See, e.g., Compl. ¶ 33 (“Ms. Glazer and Shaikh agreed to change their consulting
arrangement into a partnership in the Venture”) (emphasis added); Compl. ¶ 57 (stating that Glazer
and Shaikh “conver[ted] . . . their consulting arrangement into a partnership”) (emphasis added).
However, the Consulting Agreement—which, according to Glazer, was carefully drafted
with “ironclad” provisions (Compl. ¶ 3)—states that it “may not be amended except in writing and
signed by both Parties.” Ex. A, §12.3. Such provisions preventing oral modification are routinely
upheld by New York Courts. Taxi Medallion Loan Tr. III v. Benson Hacking Corp., 655049/2018,
2019 WL 2869382, at *5 (Sup. Ct. N.Y. Cnty. July 3, 2019) (Schecter, J.) (“[T]he courts of this
State will give effect to a party’s clearly stated intention not to be contractually bound until it has
executed a formal written agreement.”) (internal quotation marks and citations omitted); see also
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Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 343 (1977) (“Parties to a written agreement who
include a proscription against oral modification are protected by subdivision 1 of section 15-301
of the General Obligations Law.”) (internal quotation marks omitted). Accordingly, because the
“Agreement” was an impermissible, purported oral amendment to the Consulting Agreement, it is
invalid, and Counts I (breach of oral agreement) and IV (declaratory judgment) of the Complaint
should be dismissed.
II. GLAZER’S BREACH OF FIDUCIARY DUTY CLAIM (COUNT II) IS

DUPLICATIVE OF HER BREACH OF CONTRACT CLAIM
To state a claim of breach of fiduciary duty, a plaintiff must allege that (1) defendant owed
her a fiduciary duty; (2) defendant committed misconduct; and (3) plaintiff suffered damages as a
result of the misconduct. Plaintiffs’ State & Sec. Law Settlement Class Counsel v. Bank of N.Y.
Mellon, 985 N.Y.S.2d 398, 405 (Sup. Ct. N.Y. Cnty. 2014). A cause of action for breach of
fiduciary duty must be pled with particularity. CPLR 3016(b); see also N.Y. Fruit Auction Corp.
v. New York, 81 A.D.2d 159, 161 (1st Dep’t 1981).
Where a plaintiff alleges the same facts and theories and requests the same damages in
support of both a breach of fiduciary duty claim and a breach of contract claim, the breach of
fiduciary duty claim must be dismissed as duplicative. See Ripka, 2019 WL 6916088, at *6 (“The
breach of fiduciary duty claim is likewise duplicative. Even if plaintiff was owed a f iduciary duty
as a minority member . . . or based on his friendship with Stenzler . . . damages on this claim would
be duplicative.”); Ganieva v. Ivywise, LLC, No. 651071/2019, 2021 WL 1391271, at *6 (Sup. Ct.
N.Y. Cnty. Apr. 13, 2021) (dismissing a breach of fiduciary duty claim because “the cause of
action [was] based on the same facts as the cause of action for breach of contract and [sought] the
same relief.”) (internal citation omitted); NYAHSA Servs., Inc. v. People Care Inc., 141 A.D.3d
785 (2d Dep’t 2016) (dismissing “defendant’s counterclaim for breach of fiduciary duty [because
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it] alleges virtually identical facts and theories and requests the same damages as set forth in
defendant’s counterclaim for breach of contract.”).
Here, Glazer’s breach of contract claim alleges, inter alia, that Mr. Shaikh “den[ied] Ms.
Glazer’s interest in the Venture and Matonee and assert[ed] that she had no right to any founder’s
shares in Matonee,” including by “entering into a term sheet with a16z that effectively disclaimed
Ms. Glazer’s interest in the Venture and Matonee” and “secretly obtaining venture capital funding
for the Venture without Ms. Glazer’s knowledge or approval.” Compl. ¶¶ 86–87.
Likewise, Glazer’s breach of fiduciary duty claim asserts that Mr. Shaikh “depriv[ed] Ms.
Glazer of her rightful interest in the Venture and her founder’s shares in Matonee ,” including by
(a) “concealing the fact that he was communicating with a16z to obtain financing for the Venture
when he knew Ms. Glazer did not and would not agree;” (b) “disclosing Ms. Glazer’s confidential
business plan and information to a16z;” 8 (c) “conceal[ing] the fact that he incorporated Matonee
on December 3, 2021;” (d) “concealing that he did in fact obtain a commitment from a16z in secret
to fund the Venture;” and (e) “usurping opportunities created by and for the Venture, and Ms.
Glazer’s contributions thereto, for his own financial benefit.” Compl. ¶ 92.
In essence, all of these statements allege steps taken by Mr. Shaikh in breach of the alleged
oral Agreement, i.e., that Glazer would receive 50% of the founding shares of Matonee and that
8 In addition to being duplicative, Glazer’s allegations regarding her “confidential business plan”
(Compl. ¶ 92) are self-contradictory, as it is unclear from the Complaint who actually created the
“business plan” that was allegedly inappropriately disclo sed to a16z. For example, Glazer
alternatively pleads that the business plan was: (1) developed by Mr. Shaikh (Compl. ¶ 5, “Shaikh
proposed to Ms. Glazer that the business plan for the Venture be modified … to develop a new,
scalable blockchain”), (2) jointly developed by the parties (Compl. ¶ 6, “Over the course of the
following months, Ms. Glazer and Shaikh continued to develop the business plan for the Venture”),
and (3) developed by Glazer independently (Compl. ¶ 122). As such, Plaintiffs have not
demonstrated, at this juncture, that whatever information Mr. Shaikh provided to a16z was
Glazer’s confidential business plan.
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she and Mr. Shaikh would not seek dilutive financing from venture capital firms such as a16z. 9
Further, Glazer seeks the same damages in both claims. See Compl. ¶ 88 (“As a direct and
proximate result of Shaikh’s material breaches of the Agreement, Ms. Glazer has suffered
significant monetary losses in an amount to be proven at trial, but no less than $1 billion”); id. ¶ 93
(“As a direct and proximate result of Shaikh’s breaches of his fiduciary duties, Ms. Glazer has
suffered significant monetary losses in an amount to be proven at trial, but no less than
$1 billion.”). Accordingly, Glazer’s breach of fiduciary duty claim should be dismissed as
duplicative of her breach of contract claim.10
III. GLAZER’S FRAUD CLAIM (COUNT III) IS DUPLICATIVE OF HER BREACH

OF CONTRACT CLAIM
As with her claim for breach of fiduciary duty, Glazer’s fraud claim is also duplicative of
her breach of contract claim. “[A] fraud claim is not stated by allegations that simply duplicate,
in the facts alleged and damages sought, a claim for breach of contract, enhanced only by
conclusory allegations that the pleader’s adversary made a promise while harboring the concealed
9 The allegation that Shaikh improperly shared Glazer’s “business plan” with a16z is further
duplicative of Claim VII that Shaikh breached the confidentiality provisions of the Consulting
Agreement. See Compl. ¶ 122 (“Specifically, Shaikh materially breached the Consulting
Agreement by . . . [d]isclosing . . . the business plan developed by Ms. Glazer . . . to a16z.”).
10 The Complaint contains one off-hand comment that Mr. Shaikh had a fiduciary duty to Glazer
“outside of the confines of the Agreement.” Compl. ¶ 91. This conclusory allegation should be
disregarded. Singh v. PGA Tour, Inc., No. 651659/2013, 2014 WL 641311, at *7 (Sup. Ct. N.Y.
Cnty. Feb. 13, 2014) (simply alleging that one party “reposed trust and confidence” in the other
to plead a fiduciary duty is insufficient to satisfy the heighted pleading requirements under CPLR
3016). Further, to the extent Glazer and Mr. Shaikh did have a relationship outside of the alleged
Agreement, it was pursuant to the Consulting Agreement. Compl. ¶¶ 27–28. The Consulting
Agreement contains no provision that imposes any fiduciary duties on Mr. Shaikh or creates any
fiduciary relationship. Absent such a provision, Courts will typically not find a fiduciary duty.
See, e.g., First Keystone Consultants, Inc. v. DDR Constr. Servs., 74 A.D.3d 1135, 1136 (2d Dep’t
2010) (“If the parties . . . do not create their own relationship of higher trust, courts should not
ordinarily transport them to the higher realm of relationship and fashion the stricter duty for
them.”).
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intent not to perform it.” Cronos Grp. Ltd. v. XComIP, LLC, 156 A.D.3d 54, 62 (1st Dep’t 2017);
see also Caniglia, 204 A.D.2d at 234 (dismissing fraud claim that merely related to contracting
party’s alleged intent to breach contractual obligation).
To survive a motion to dismiss in a matter where a contract is alleged, plaintiff must allege
fraud based on facts different from those underlying a breach of contract claim, as well as allege
damages that would not be recoverable under a contract measure of damages. See, e.g., Papa’s-
June Music, Inc. v. McLean, 921 F. Supp. 1154, 1161 (S.D.N.Y. 1996) (To maintain a fraud action
in a contractual setting, the plaintiff must allege (1) a legal duty separate and apart from the
contractual duty to perform; (2) a fraudulent representation collateral or extraneous to the contract;
or (3) special damages proximately caused by the fraudulent representation that are not recoverable
under the contract measure of damages.).
Just as in the breach of fiduciary duty claim, Glazer alleges that Shaikh defrauded her by
“[p]urporting to deny Ms. Glazer her rightful interest in the Venture, and therefore Matonee,”
including by (a) “concealing the fact that he was communicating with a16z in order to obtain
financing for the Venture when he knew Ms. Glazer did not and would not agree;” (b)
“[c]oncealing the fact that he had incorporated Matonee on December 3, 2021;” (c) “[c]oncealing
the fact that he had received a term sheet from a16z on December 7;” and (d) “[m]isrepresenting
during a December 16, 2021 Zoom conference that Ms. Glazer would be ‘taken care of.’”
Compl. ¶ 95.
Just like the allegations in support of Glazer’s claim of breach of fiduciary duty, these
allegations stem from Glazer’s claim that Shaikh did not comply with the parties’ purported
Agreement (i.e., that Glazer would be a 50% owner of Matonee and that the parties would not seek
dilutive financing), and Glazer does not allege any fraudulent conduct outside of the confines of
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Shaikh’s duties pursuant to the alleged oral Agreement. See Antares Real Estate Servs. III, LLC
v. 100 WP Pr. - DOF II, LLC, No. 652829/2013, 2014 WL 2042300, at *5 (Sup. Ct. N.Y. Cnty.
May 16, 2014) (“Antares’ fraud claims are little more than an attempt to enforce the alleged oral
agreements preceding the PMLA.”).
Moreover, Glazer pleads no unique damages pursuant to the fraud claim that are different
from the breach of contract claim. See Compl. ¶ 98 (“As a direct and proximate result of Shaikh’s
fraudulent misrepresentations and omissions, Ms. Glazer has suffered significant monetary losses
in an amount to be proven at trial, but no less than $1 billion .”); see id. generally (alleging no
separate damages for fraud). Accordingly, Glazer’s fraud claim should be dismissed pursuant to
black letter law that it is duplicative of her breach of contract claim. See, e.g., Ripka 2019 WL
6916088, at *3 (“The fraud claim is duplicative. . . . If both the contract and quasi contract claims
cannot be proven, the fraud claim necessarily fails; but if plaintiff recovers on either claim,
recovery on the fraud claim would be duplicative.”).
IV. GLAZER’S PROMISSORY ESTOPPEL CLAIM (COUNT IV) FAILS BECAUSE

THERE WAS NO CLEAR AND UNAMBIGUOUS PROMISE ON WHICH SHE
COULD REASONABLY RELY, AND IT IS DUPLICATIVE OF HER BREACH OF
CONTRACT CLAIM
“To apply the doctrine of promissory estoppel, [a party] must establish (1) a clear and
unambiguous promise; (2) reasonable and foreseeable reliance on that promise; and (3) an
unconscionable injury.” Melrose Credit Union v. Ulysse, 109 N.Y.S.3d 838 (Sup. Ct. Queens
Cnty. 2018). As discussed supra at Section I.A, contradictory allegations in her own Complaint
and the November 7 WhatsApp message show that Glazer did not receive and rely upon a “clear
and unambiguous promise” regarding the specific terms of her $10 million investment in Matonee.
Therefore, Count IV should be dismissed.
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Count IV should also be dismissed because, as pled, the Agreement was an impermissible
oral modification to the Consulting Agreement (Compl. ¶ 33), and under New York law, Glazer
cannot show reasonable reliance on an unenforceable oral modification. See, e.g., Rivera v.
Cumulus Media, Inc., No. 654121/2015, 2016 WL 2647671, at *3 (Sup. Ct. N.Y. Cnty. May 9,
2016) (“The First Department has long acknowledged that the existence of a valid contract
containing a ‘no-oral-modification clause’ precludes an aggrieved party from proving the
‘reasonable reliance’ element of a promissory estoppel claim.”). Accordingly, Glazer’s
promissory estoppel claim should be dismissed.
Finally, Count IV should also be dismissed on the alternative ground that Glazer’s claim
of promissory estoppel and request for expectation damages is duplicative of other claims. Where
a plaintiff alleges a breach of contract and a promissory estoppel claim that both cover the same
subject matter and seek the same remedy (i.e., enforcement of the benefit of the bargain), the
promissory estoppel cause of action can only survive if a plaintiff alleges a duty independent from
the alleged contract. Bondoc v. Nathan, No. 152178/2015, 2017 WL 119750, at *7 (Sup. Ct. N.Y.
Cnty. Jan. 12, 2017) (“A claim for promissory estoppel that is duplicative of a breach of contract
claim cannot survive a motion to dismiss, in the absence of a duty independent of the contract.”);
MatlinPatterson ATA Holdings LLC v. Fed. Express Corp., 87 A.D.3d 836, 842–43 (1st Dep’t
2011) (promissory estoppel requires duty “arising out of circumstances extraneous to, and not
constituting elements of, the contract itself—has been violated”). The complaint does not plead a
non-contractual, independent duty owed by Mr. Shaikh to Glazer under the theory of promissory
estoppel.
Further, as with the breach of fiduciary duty and fraud claims, Glazer has again requested
full contract damages in connection with the alleged Venture (i.e., the same subject matter as the
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alleged oral contract) under the guise of a promissory estoppel claim. See, e.g., Compl. ¶ 104 (“As
a direct and proximate result of Ms. Glazer’s reasonable reliance on Shaikh’s broken promises as
set forth above, Ms. Glazer has suffered significant monetary losses in an amount to be proven at
trial, but no less than $1 billion.”) (emphasis added). Expectation damages are not recoverable
for promissory estoppel and should be dismissed to the extent she seeks duplicative damages under
that claim. See Basu v. Alphabet Mgmt. LLC, No. 651340/10, 2014 WL 3373441, *7 (Sup. Ct.
N.Y. Cnty. July 9, 2014) (expectation damages are not recoverable under a claim for promissory
estoppel; rather, “[a] plaintiff is limited to damages resulting from ‘expenses that plaintiff incurred
in relying on defendant’s alleged promise.’”) (internal citation omitted), modified on other grounds
and aff’d, 127 A.D.3d 450 (1st Dep’t 2015). As alleged here, Glazer’s expenses total less than
$10,000. Compl. ¶ 62.
V. GLAZER’S UNJUST ENRICHMENT CLAIM (COUNT V) SHOULD BE

DISMISSED BECAUSE THERE WAS NO ORAL AGREEMENT, AND TO THE
EXTENT IT SEEKS FULL CONTRACT DAMAGES
Because there was no oral agreement, Glazer never had an entitlement to “founders’
shares” in Matonee. See Section I. As a result, Mr. Shaikh cannot have been unjustly enriched at
Glazer’s expense. See FoxStone Grp., LLC v. Calvary Pentecostal Church, Inc., 173 A.D.3d 978,
981 (2d Dep’t 2019) (unjust enrichment requires a showing that defendant has been enriched at
plaintiff’s expense).
The unjust enrichment claim should also be dismissed because Glazer alleges that the oral
Agreement is a result of the amendment to the Consulting Agreement, Compl. ¶ 33, but the
Consulting Agreement contains a no-oral modification clause. Accordingly, as with her
promissory estoppel claim, see supra Section IV, Glazer could not have reasonably relied on the
alleged oral agreement and therefore Glazer has not alleged any unjust outcome. See, e.g.,
Mandarin Trading Ltd. v. Wildenstein, 65 A.D.3d 448, 452 (1st Dep’t 2009) (“Mandarin’s unjust
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enrichment claim cannot be a back door to recovery based upon reliance on the appraisal, when it
was not entitled to rely upon the appraisal in the first place.”)
However, if the unjust enrichment claim is not fully dismissed, the Court should prohibit
Glazer from seeking anything beyond reasonable compensation for services rendered under an
unjust enrichment theory. See, e.g., Hecht v. Andover Assocs. Mgmt. Corp., 114 A.D.3d 638, 641
(2d Dep’t 2014) (“damages may properly be limited on a motion to dismiss”). In cases involving
alleged oral agreements, Courts typically only permit plaintiffs to plead unjust enrichment as an
alternative to their contract claims to the extent plaintiff seeks recovery for services rendered.
Fallon v. McKeon, 230 A.D.2d 629, 630 (1st Dep’t 1996) (“[T]he amended complaint also fails to
make out a claim for unjust enrichment, since instead of identifying the reasonable value of
services rendered by plaintiff . . . , plaintiff simply claims damages identical to the other four
causes of action, which in form, request gross revenues from the program.”). Here, Glazer goes
far beyond this, seeking $1 billion and shares of Matonee. Compl ¶ 109 (“Shaikh’s taking and
retention of Ms. Glazer’s founder’s share of Matonee deprived Ms. Glazer of her equal ownership
interest therein, and violates principles of equity and good conscience.”); id. ¶ 110 (“Ms. Glazer
has suffered significant monetary losses in an amount to be proven at trial, but no less than
$1 billion.”). Glazer should not be permitted to pursue such recovery and, at best, Glazer should
be limited to recovering the value of services rendered. Collins Tuttle & Co. v. Leucadia, Inc.,
153 A.D.2d 526, 527 (1st Dep’t 1989) (“Recovery on a claim premised upon quasi-contract or
unjust enrichment is limited to the reasonable value of the services rendered by the plaintiff.”);
Davis v. Cornerstone Tel. Co., LLC, 887 N.Y.S.2d 477, 479 (Sup. Ct. Albany Cnty. 2009)
(“Plaintiff’s pursuit of the ‘benefit of his bargain’ through a claim to some portion of the equity
and/or profits of CornerStone, . . . ‘would … improperly … establish something like [his]
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expectation interest under the [failed contract], not the restitution (or sometimes reliance) interest
that is the proper focus of quantum meruit’”) (citing Mem’l Drive Consultants, Inc. v. ONY, Inc.,
29 F. App’x 56, 61 (2d Cir. 2002)). Accordingly, the Court should dismiss the unjust enrichment
claim to the extent Glazer seeks anything more than reasonable compensation for services she has
provided to Defendants, if any.
VI. THE CONSULTING AGREEMENT WAS NOT BREACHED (COUNT VII)

BECAUSE IT DID NOT COVER THE BUSINESS ACTIVITIES OF MATONEE
In Count VII, Plaintiff Swoon alleges that Mr. Shaikh breached the non-compete and
confidentiality provisions of the Consulting Agreement (Ex. A). This claim fails as a matter of
law.
A. The Consulting Agreement’s Non-Compete Provision Does Not Extend To

Developing A Layer 1 Blockchain.
Under New York law, “covenants not to compete should be strictly construed because of
the powerful considerations of public policy which militate against sanctioning the loss of a
person’s livelihood.” Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364, 370 (2015) (internal
quotation marks, citations, and alterations removed). Because of these public policy
considerations, the reach of a non-compete should not extend “beyond the literal meaning of its
terms.” DeCapua v. Dine-A-Mate, Inc., 292 A.D.2d 489, 492 (2d Dep’t 2002).
The Consulting Agreement itself also narrowly defines the scope of the non-compete
provision. Specifically, the Consulting Agreement only restricts Mr. Shaikh from working with a
“business . . . . that is the type and character or that is competitive with any business conducted
by [Swoon] . . . anywhere in the world,” where Swoon’s “business” is described as “procuring
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digital assets for their incorporation into sports franchises globally.”11 Ex. A, § 10.1. The
limitation of the non-compete agreement to “sports franchises” aligns with Ms. Glazer’s family’s
ownership of a professional football franchise and a Premier League soccer franchise. Compl. ¶ 1.
It is undisputed that Defendants are currently working to “develop [a] scalable . . . Layer 1
blockchain.” See Compl. ¶¶ 40, 51, 63, 84. Plaintiffs do not allege—nor can they—that
Defendants are in the business of “procuring” digital assets [to] “incorporate[] into sports
franchises globally.” Ex. A, §10.1. Given the significant differences in Swoon’s and Defendants’
business activities, and New York law’s mandate that restrictive covenants be “strictly construed,”
Mr. Shaikh has not violated the non-compete provision of the Consulting Agreement.
Presumably recognizing that the Consulting Agreement’s non-compete provision does not
prohibit business activities related to building a Layer 1 Blockchain, Swoon attempts to resuscitate
its contractual non-compete claim by alleging that “Ms. Glazer and Shaikh agreed to change their
consulting arrangement into a partnership in the Venture.” Compl. ¶ 33; see also Compl. ¶ 57
(Mr. Shaikh and Ms. Glazer “conver[ted] their consulting arrangement into a partnership”). But
such an oral modification is not possible where, as here, an agreement states that it “may not be
amended except in writing and signed by both Parties.” Ex. A, §12.3; see also supra at Section
I.D.
Because the Consulting Agreement by its terms does not cover Defendants’ current
business activity, and because the Consulting Agreement cannot be modified orally to cover that
business activity, any claim that Mr. Shaikh violated the non-compete provision of the Consulting
Agreement should be dismissed with prejudice.
Black’s law dictionary defines “procure” as “[t]o obtain (something), esp. by special effort or
11
means.” Black’s Law Dictionary (11th ed. 2019).
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B. The Consulting Agreement’s Confidentiality Provision Does Not Extend To

The Venture’s Business Plan.
Swoon similarly cannot maintain that Mr. Shaikh violated the Consulting Agreement’s
confidentiality provision by disclosing the “business plan [allegedly] developed by Ms. Glazer . .
. to a16z . . .” Compl. ¶ 122.
The Consulting Agreement limits the prohibition of sharing any “business plan” to one that
was shared with Mr. Shaikh “as a result of or in connection with the performance of . . . Services,”
where “Services” are defined as “recommending no less than three digital assets for incorporation
into a sporting franchise that satisfy to the maximum extent possible the objectives described to
Consultant by SC.” See Ex. A, §§ 1, 8.1-8.2.
Any “business plan” that Glazer purportedly created regarding a Layer 1 blockchain could
not have been “provided as part of the Services” because creating a Layer 1 Blockchain is in no
way related to “recommending . . . three digital assets for incorporation into a sporting franchise.”
Therefore, the “business plan” that Shaikh allegedly shared with a16z is not covered by the
Consulting Agreement.
C. Swoon And Mr. Shaikh Abandoned The Consulting Agreement.
In the alternative, Swoon cannot maintain a breach of contract claim with respect to the
Consulting Agreement because Glazer’s complaint pleads that she and Mr. Shaikh agreed to
abandon it. “A mutual agreement to abandon a contract discharges any obligations under the
contract and renders the contract unenforceable.” Aeb & Assocs. Design Grp. v. Tonka Corp., 853
F. Supp. 724, 733 (S.D.N.Y. 1994). In other words, once a contract is abandoned, the contract
“dissolves” and neither party can “sue for a breach [or] compel specific performance” under the
agreement. C3 Media & Mktg. Grp., LLC v. FirstGate Internet, Inc., 419 F. Supp. 2d 419, 433
(S.D.N.Y. 2005). An agreement is abandoned when the parties to the agreement do not intend to
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perform under an agreement. Hubbell v. Pac. Mut. Ins. Co., 100 N.Y. 41, 47 (1885) (“In the
present case neither party performed or offered to perform the mutual conditions within the agreed
or customary time, and both parties appear to have abandoned the contract.”).
The key material terms of the Consulting Agreement were that Ms. Glazer would pay
Mr. Shaikh $35,000 and Mr. Shaikh would perform certain services. Here, Plaintiffs
unequivocally state that the parties agreed not to perform their duties under the Consulting
Agreement and that Shaikh was not paid under the Consulting Agreement. Compl. ¶ 33 (“Shaikh
never performed his duties under the Consulting Agreement and did not receive payment
thereunder.”). Moreover, as noted previously, any modifications to the Consulting Agreement
were not effective if not made in writing. See supra at Section I.D.
Accordingly, the parties’ alleged agreement “to change their consulting arrangement into
a partnership in the Venture” (Compl. ¶ 33) was not a modification of the Consulting Agreement—
as it was not in writing—but an abandonment of the Consulting Agreement. Swoon cannot sue
for breach of an abandoned contract. See EMF Gen. Contracting Corp. v. Bisbee, 6 A.D.3d 45,
49 (1st Dep’t 2004) (the abandonment of a contract “dissolves the contract so that he can neither
sue for a breach nor compel specific performance.”) (internal citation omitted).
VII. THE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE
Plaintiffs’ claims should be dismissed with prejudice because any amendment to the
Complaint containing a truthful recitation of the facts cannot salvage the Complaint. See, e.g.,
Carroll ex rel Pfizer, Inc. v. McKinnell, No. 601879/06, 2008 WL 731834, at *11 (N.Y. Cnty. Sup.
Ct. Mar. 17, 2008) (“[I]t is well-settled that a complaint should be dismissed with prejudice where
the plaintiff is unable to adequately allege facts sufficient to support his or her cla ims”). “Where
a defect in a complaint cannot be cured by amendment, it is futile to grant leave to amend.” Id.
During her April 29, 2022 deposition, Glazer testified under oath and admitted that she and Mr.
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Shaikh did not agree to numerous essential and material terms in the alleged oral Agreement,
including, inter alia:
• The size of the “equity pool” that Glazer and Mr. Shaikh would give to Fox in exchange
for its $10 million investment (Ex. D (“Glazer Dep.”) 111:2–15);
• The “structure” of Fox’s investment, including whether and how Fox would share in
the “losses” with other investors, and how this would impact Glazer’s purported
“50/50” loss sharing agreement with Mr. Shaikh (Glazer Dep. 123:10–126:19);
• The inclusion of other investors, and how this would impact Glazer’s purported “50/50”
agreement with Mr. Shaikh (Glazer Dep. 126:11–127:11);
• The type of equity Fox would receive (Glazer Dep. 117:17–21);
• The structure or type of equity that Glazer or Mr. Shaikh would receive of the “many
different ways of structuring equity” (e.g., common, preferred) (Glazer Dep. 112:16–
113:11, 115:3–13, 114:8–21, 115:24–116:15);
• The type of legal entity to hold the Venture (e.g., LLC or C-Corp) (Glazer Dep. 101:19–
25);
• The vesting schedule of the founder’s shares (Glazer Dep. 116:16–21);
• The length of time Glazer and Mr. Shaikh would wait before accepting investments
from outside investors other than Fox (Glazer Dep. 130:15–17); and
• The type of agreement that Glazer would sign (e.g., a simple agreement for equity
(“SAFE”) or something else) (Glazer Dep. 321:12–23).
Glazer also had no meaningful explanation for the November 7 WhatsApp message, which
set forth statements from Mr. Shaikh irrefutably inconsistent with her allegation that they had
reached the purported oral Agreement weeks earlier, and reaffirmed it a few days prior. See Ex. B
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at 1 (Mr. Shaikh describing that it would take $75-100 million to launch Matonee, not $20 million;
that investors would include “VCs,” and that those VCs, including a16z, “ are all names that I
have spoken with that would be very interested.”) (emphasis added). Indeed, in response to this
evidence, Glazer remarkably testified that it was “just talk,” in a case where she alleges an oral
agreement growing out of such talk. Glazer Dep. 291:17-21.
Having testified under oath that there was no meeting of the minds with respect to
numerous material terms to the Agreement, Glazer cannot truthfully plead otherwise. Therefore,
this case should dismissed with prejudice.
CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that the Court dismiss all
of the claims in the Complaint with prejudice and order such other and further relief as the Court
deems appropriate.
Dated: Los Angeles, California

May 17, 2022
By: /s/David Grable

David Grable
865 Figueroa St., 10th Floor

Los Angeles, CA 90017
(213) 443-3190
[email protected]
Michael Liftik
Serafina Concannon
1300 I Street NW Suite 900
Washington, D.C. 20005
(202) 538-8000
[email protected]
[email protected]
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Anil Makhijani
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
[email protected]
Counsel for Defendants
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ATTORNEY CERTIFICATION PURSUANT TO

COMMERCIAL DIVISION RULE 17
I, David Grable, an attorney duly admitted to practice law before the courts of the State of
New York, hereby certify that this Memorandum of Law complies with the word count limit set
forth in the parties’ May 13, 2022 stipulation which was so-ordered by this Court on May 13, 2022
(NYSCEF Doc. No. 33) because it contains 9976 words, excluding the parts of the memorandum
exempted by Rule 17 of the Commercial Division of the Supreme Court (22 NYCRR 202.70(g)).
In preparing this certification, I have relied on the word count of the word-processing system used
to prepare this memorandum of law.
Dated: Los Angeles, California

May 17, 2022
/s/ David Grable .

David Grable
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FILED: NEW YORK COUNTY CLERK 05/17/2022 08:09 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANTS’ MOTION TO

QUINN EMANUEL URQUHART &

PRELIMINARY STATEMENT .............................................................................................. 1

VI. THE CONSULTING AGREEMENT WAS NOT BREACHED (COUNT VII)

EMF Gen. Contracting Corp. v. Bisbee,

NYAHSA Servs., Inc. v. People Care Inc.,

N.Y. Civ. Prac. L. & R. 3016(b) ............................................................................................. 18

Defendant Mohammed Shaikh (“Shaikh”) and Nominal Defendant Matonee, Inc.

the technology underlying Matonee.

would be granted “50% of the founder’s shares.” Compl. ¶¶ 84-86.

commitment to invest $10 million.” Compl. ¶¶ 50, 58.

them a16z, Kleiner Perkins, and Paradigm.

the Consulting Agreement.

abandoned. Accordingly, the Complaint should be dismissed in its entirety.

incorporation into sports franchises globally.” Ex. A at 4.

a mutual acquaintance.” Compl. ¶¶ 3, 27.

B. The Written Consulting Agreement

agreed to pay Mr. Shaikh $35,000. Compl. ¶ 3.

5. The Consulting Agreement contains a narrow non-compete provision, stating that

sports franchises globally.” Ex. A at 4.

through a writing signed by both parties.

Agreement and did not receive payment thereunder.” Compl. ¶ 33.

C. The Alleged Oral “Agreement” To Create The “Venture”

this “change” or “modif[ication]” to the Consulting Agreement was accomplished through a

writing, let alone a writing signed by both parties.

secure would not.

D. The Parties’ Conduct Subsequent To The Alleged Oral Agreement

commitment to each other” under the Agreement. Compl. ¶¶ 50–51.

engineers for the Venture.” Id.

conversation, which Glazer elected to omit from her Complaint:

[11/7/21, 11:39:51 AM] Mo Shaikh: That won’t be enough.

[11/7/21, 11:40:00 AM] Shari Glazer: Just to get them?

[11/7/21, 11:40:21 AM] Shari Glazer: What’s the number to do phase 1

[11/7/21, 11:40:40 AM] Shari Glazer: To me phase 1 is talent right?

[11/7/21, 11:40:59 AM] Shari Glazer: 20?

[11/7/21, 11:41:59 AM] Shari Glazer: To start?

[11/7/21, 12:53:56 PM] Shari Glazer:

[11/7/21, 12:54:48 PM] Shari Glazer:

[11/7/21, 1:49:22 PM] Mo Shaikh: Phase 1: Launch the blockchain

Something we want to do as fast possible

External advisors/council: legal, marketing, etc.

1/ Shari and Friends

2/ strategic VCs: a16z, blocktower, Kliener, Pantera, multicoin, paradigm

Ex. B at 1 (emphasis added).

excited about this I can’t tell you.” Ex. B at 2 (emphasis added).

repudiated his alleged oral agreement with her. Compl. ¶ 78.

Nominal Defendant Matonee. See Compl.

nowhere states how Matonee’s “interests would be affected.”

“that are inherently incredible or flatly contradicted by documentary evidence.” Caniglia v.

evidence provided by the defendant refutes plaintiff’s claims.5

was formed between parties).

Further, in a case involving an oral agreement, where a communication by plaintiff plainly